Ann H. v. Riesel Indep. Sch. Dist., 112221 FED5, 20-50003

Docket Nº20-50003
Opinion JudgeJennifer Walker Elrod, Circuit Judge
Party NameLeigh Ann H., as parent, guardian, and next friend of K.S., and K.S. individually, an individual with a disability, Plaintiff-Appellant, v. Riesel Independent School District, Defendant-Appellee.
Judge PanelBefore Elrod, Duncan, and Wilson, Circuit Judges.
Case DateNovember 22, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (5th Circuit)

Leigh Ann H., as parent, guardian, and next friend of K.S., and K.S. individually, an individual with a disability, Plaintiff-Appellant,

v.

Riesel Independent School District, Defendant-Appellee.

No. 20-50003

United States Court of Appeals, Fifth Circuit

November 22, 2021

Appeal from the United States District Court for the Western District of Texas USDC No. 6:17-CV-210

Before Elrod, Duncan, and Wilson, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge

This case arises out of the Individuals with Disabilities in Education Act (IDEA) and its associated regulations. The idea behind IDEA is that every student, regardless of disability, is entitled to a free and appropriate public education.1 Leigh Ann H. and her now-adult son K.S., a former high school student with a specific learning disability, brought this case

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contending that the Riesel Independent School District (RISD) neither provided K.S. with a free appropriate public education nor complied with procedural safeguards meant to ensure such. They appeal the district court's affirmance of two administrative decisions concluding that RISD did not violate IDEA's substantive and procedural requirements.2 Having carefully reviewed the voluminous record and the magistrate judge's thorough report that the district court adopted, we affirm.

I.

K.S. navigated elementary and high school in RISD with mixed academic success and a checkered disciplinary record. Apart from third grade, which he completed at Marlin Elementary School, K.S. attended school within RISD for his entire education. This case emerged from K.S.'s identification and accommodation as a student with disabilities during his RISD high school career, but some details from his elementary school days are necessary to understand the claims presented here on appeal.

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While attending third grade at Marlin, K.S. began to get into trouble. His mother, Leigh Ann H., sought out a private psychologist, Dr. Finlay, to evaluate K.S. Dr. Finlay reported that K.S. was in the "middle part of the average range of intellectual functioning," but that there were "possible learning disabilities in reading and written expression." Dr. Finlay further concluded that K.S.'s "score patterns were not consistent with a child with [attention deficit hyperactivity disorder] and, therefore, the test results suggest[ed] that his problems in school [we]re more mood related and probably associated with learning disabilities." He recommended that K.S. should be "considered for special education services for learning disability and possibly emotional disturbance." Dr. Finlay's report, however, was not provided to RISD until March of 2016, by which point K.S. was in eleventh grade.

When K.S. returned to RISD in the fourth grade, he did not stand out academically. His grades and standardized test scores were generally middling, and he did not fail consistently in any one subject, let alone across the board. Indeed, K.S. passed all of his middle-school classes with average to above-average grades. He passed his State of Texas Assessment of Academic Readiness exams in reading, math, writing, and science as a fourth and fifth grader. And although he narrowly failed the state standardized exams for sixth-grade reading, seventh-grade writing, and eighth-grade social studies, K.S. subsequently passed both his seventh- and eighth-grade reading tests-with his score on the latter nearly earning him "Advanced" achievement status.

Come high school, K.S.'s mixed academic track record continued. In ninth grade, K.S. failed Biology I and Algebra I but passed the standardized state exams in both subjects. Inversely, he initially failed his English I and II standardized exams by a few points (he later passed) while passing his corresponding ninth- and tenth-grade high school courses. Besides tenth-

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grade World Geography and a semester of Geometry, K.S. otherwise passed his high school classes and other state standardized assessments.

K.S.'s behavior in high school was substandard. His freshman year, K.S. received a suspension for refusing to do his work, swearing repeatedly at a teacher, and punching a wall. This resulted in a thirty-day stay at RISD's disciplinary alternative education placement center. In the tenth grade, he received twenty-six disciplinary referrals: ten for tardiness, six for failure to follow directions, four for rudeness or profanity, three for failure to turn in work, one for disrupting class, one for being in detention hall too many times, and one for chewing tobacco on school property. The next year, however, his disciplinary referrals dropped to just two (at least, as of March of his 2017 spring semester).

In March of 2016, at Ms. H.'s request, RISD referred K.S. for a full individual and initial evaluation. Ms. H. noted on her referral form that she was making the request due to K.S.'s "struggles with math" and "behavioral outburst[s] when angry." RISD finished its evaluation about eight weeks later. The forty-page report summarizing RISD's findings concluded that K.S. met the special education criteria for specific learning disabilities in math calculation and math problem solving, as well as in reading fluency- an area of difficulty that Ms. H. had not mentioned. RISD's diagnostician did not consider it necessary to evaluate K.S. for an emotional disturbance.

Following K.S.'s initial evaluation, RISD held an Admission, Review, and Dismissal Committee meeting to develop an individualized education program for K.S. The resultant program provided goals to achieve grade-level performance in both math and English and a number of accommodations for K.S. in both courses, including changing the pace of instruction and having teachers clarify complex concepts to suit his needs. RISD assigned a case worker to consult with his teachers for at least fifteen

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minutes each grading period, although actual consultations proved considerably more extensive. The education program also contained a transition plan that highlighted K.S.'s goals of attending college, pursuing a degree in criminal justice, and ultimately, becoming a game warden.

Ms. H. was dissatisfied with RISD's assessment and concerned that her son was not receiving the accommodations required by his individualized education program. She filed a request in December for a due process hearing, and the school promptly responded by seeking a reevaluation of K.S. In January of 2017, before the next evaluation, K.S. received an in-school suspension for losing his temper, swearing, and slamming the door when a teacher tried to take his cell phone away. Over the next couple of months, RISD evaluated K.S. for a second time but did not conduct a behavioral assessment because his behavior was considered "well within the average range." This evaluation resulted in a new individualized education program which replicated the 2016 program but added an adjusted goal for K.S. to achieve grade-level performance in mathematics.

A month later, in preparation for the due process hearing, Ms. H. hired Dr. Lesli Doan to conduct a psychoeducational evaluation of K.S. Dr. Doan concluded that, in addition to his current specific learning disabilities, K.S. should be found eligible for special education in reading fluency and comprehension, written expression, and potentially oral expression and listening comprehension. Her report further suggested that K.S. met the eligibility requirements for an "Other Health Impairment" due to K.S.'s attention deficit hyperactivity disorder and behavioral issues at school.

Ms. H. also procured the opinion of a certain Dr. Bruce Bloom in preparation for the impending hearing. Dr. Bloom based his report on an interview with Ms. H. and K.S.'s academic records but did not meet with K.S. prior to issuing the report. His report criticized K.S.'s individualized

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education program for its allegedly inadequate accommodations, unrealistic goals, and insufficiently supported, unrealistic long-term transition plan.

In May of 2017, the school called another committee meeting to reassess K.S.'s program but ultimately recommended no changes at that time. When Ms. H. voiced her disagreement, the committee reconvened in June and agreed to add fifteen minutes of specialized instruction in reading fluency, two days per week.

Just weeks after K.S.'s eighteenth birthday, an incident occurred on school grounds for which he was charged with assault, a Class A misdemeanor. K.S. was banned from school grounds, and RISD sought to place him in the disciplinary education center for forty days once the school year began. Eight days after the assault, Principal Brandon Cope contacted K.S. and his mother to schedule a manifestation determination review. K.S. did not attend the resultant August meeting because of the "no trespass" order that remained in effect. The meeting's purpose was to determine whether K.S.'s behavior resulted from his learning disabilities. All attendees besides Ms. H. concluded that the assault was not connected to his specific learning disabilities in math and English and recommended that K.S. be sent to the disciplinary education center.

Barely a week later, on September 1, a second manifestation determination review took place. This time, K.S. attended. The attendees revisited the previous meeting's discussion and its conclusion that the assault was "not a manifestation of [K.S.]'s learning disability and not a failure of the district to implement [his individualized education program] since school was not in session." All committee members "were given the opportunity to express concerns and offer input." Ms. H. and K.S. disagreed.

At the same September meeting, Ms. H. and K.S. indicated that they wanted K.S. to graduate early. They requested a major scheduling change:

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K.S. would complete two whole senior-level courses-English IV and Government/Economics-from the disciplinary education center in order to...

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